Excerpt: - - there is a joint khewat and admittedly the plaintiffs have enjoyed some portion of the profits of the joint khewat. the rent having been fixed at his instance he would be the person entitled to sue for arrears of rent, and the ejectment and dakhal dehani followed on the decree remaining unsatisfied.dalal, j.1. two plaintiffs, ganga sahai and chandi prasad, sued in the revenue court babu nihal singh for recovery of arrears of profits under section 165, tenancy act. nine other persons were made pro forma defendants because their names also existed in the khewat. the plaintiffs' case was that in the khewat consisting of 18 biswas of land the plaintiffs, along with nine defendants other than babu nihal singh, were recorded as cosharers of one-half and babu nihal singh of the other half, that by a partition of certain properties between the plaintiffs and the pro forma defendants the half-share in this khewat had been allotted to the plaintiffs alone, that the plaintiffs cultivated 5 biswas of land while nihal singh cultivated 13 biswas and that on account of this difference babu nihal.....

Judgment:

Dalal, J.

1. Two plaintiffs, Ganga Sahai and Chandi Prasad, sued in the revenue Court Babu Nihal Singh for recovery of arrears of profits under Section 165, Tenancy Act. Nine other persons were made pro forma defendants because their names also existed in the khewat. The plaintiffs' case was that in the khewat consisting of 18 biswas of land the plaintiffs, along with nine defendants other than Babu Nihal Singh, were recorded as cosharers of one-half and Babu Nihal Singh of the other half, that by a partition of certain properties between the plaintiffs and the pro forma defendants the half-share in this khewat had been allotted to the plaintiffs alone, that the plaintiffs cultivated 5 biswas of land while Nihal Singh cultivated 13 biswas and that on account of this difference Babu Nihal Singh had collected more than his share of profits and, therefore, was liable to pay to the plaintiff's their share of excess profits recovered by Nihal Singh. Though there had been partition, as is alleged by the plaintiffs, the names of the nine pro forma defendants continued in the khewat, and the share recorded against the names of the plaintiffs was only one-eighth. Babu Nihal Singh appears to have raised the plea in the revenue Court that the plaintiffs were entitled to recover profits of only one-eighth share and not one-half, and that, according to the plaintiff's own admission, they had received profits to the extent of one-eighth by cultivating 5 biswas. He, therefore, pleaded that the suit should be dismissed. The pro forma defendants raised no objection to the claim of the plaintiffs that they were entitled to one-half. The situation was therefore peculiar. The real object of Babu Nihal Singh was to make out that he was full owner by right of adverse possession of 13 biswas land and not only of 9 biswas, but because of the want of correction in the khewat he was able to take advantage of the entry in the khewat and to plead that the suit should be dismissed only on the basis of the record in the khewat. In reality, even if the plaintiffs were not owners of one-half, the other cosharers were on the record, and the revenue Court could have passed a decree in favour of the plaintiffs and the nine pro forma defendants, and no necessity would have arisen for reference to the civil Court under Section 201, as admittedly the plaintiffs and the pro forma defendants are recorded as having the proprietary right in the khewat to the extent of one-half to, entitle them to institute the suit.

2. Any way the plaintiffs were directed to establish their title in the civil Court. There the real defence which had to be fought out was whether the defendant was entitled to receive profits of 9 biswas of land only or of 13 biswas of which he was actually in possession. The learned District Judge held that the plaintiffs were owners of a one-eighth share in the khewat only. That decision, however, cannot be maintained. It was open to the District Judge, if he did not desire to grant a declaration in favour of the plaintiffs, to grant a declaration to the plaintiffs and the nine pro forma defendants jointly. The pro forma defendants have not objected; so it is obvious that the plaintiffs alone are owners of one-half.

3. The real point in issue is whether the defendant Nihal Singh has become owner of the 13 biswas land in this particular khewat by adverse possession. Both the subordinate Courts have decided the point in favour of the contesting defendant. I am of opinion that this finding is incorrect. On behalf of the defendant-respondent Mr. Haribans Sahai first raised the plea that the finding of the lower appellate Court is one of fact. There were before that Court circumstances on which it could arrive at the finding that there had been an ouster of the plaintiffs from 4 biswas of land, though the plaintiffs and Nihal Singh were co-owners. He quoted a single-Judge ruling of the Madras High Court, Mariammal v. Augustine Roy : AIR1927Mad170 . In that case, however, the plaintiff had not been in possession at all, and the question was whether the possession of his co-sharer would be tantamount to the possession of the plaintiff. The learned Judge pointed out that under certain circumstances the possession of a co-owner can be adverse, and that the question was one of fact. In the present case, in my opinion, the subordinate Courts have misdirected themselves. The learned Munsif has written a very thoughtful judgment, He has arrived at a wrong conclusion, because, I believe, he is not familiar with revenue law or proprietary tenure.

4. In my opinion, the question of adverse possession does not arise at all in the present case. There is a joint khewat and admittedly the plaintiffs have enjoyed some portion of the profits of the joint khewat. They have not received equal profits for some years. I think it would appeal to the Munsif if I gave the analogy of house. If there are two co-sharers entitled equally to a house and one occupied one room and the other the rest of the rooms say, five, it cannot be held that the owner of the five rooms was exercising adverse possession. At the time of partition the division would be made according to title because the cosharer who was in possession of only one room was exercising the rights of an owner though not to the amount and the degree of his share in the house. If in the present case Nihal Singh had been in possession of 18 biswas and the plaintiffs had been dependent for their title only on the entry in the khewat, the argument would have been correct that the question of Nihal Singh's adverse possession of the 18 biswas was one of fact and that the lower appellate Court was entitled to record as a finding of fact that Nihal Singh had been in adverse possession as against his cosharers. In the Privy Council case quoted by the defendant-respondent's learned Counsel, Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44, their Lordships held that the rule, that the possession of one of several coparceners, joint tenants, or tenants-in-common is the possession of all does not apply to sharers in an unpartitioned agricultural village in India not holding their shares as members of a joint Hindu family. In that case also the plaintiff was not in possession at all. Their Lordships quoted an English ruling to the effect that where the claimant tenant-in-common has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster. In the present case the plaintiffs did participate in the rents and profits of the khewat up to the time of the suit, because admittedly they were in cultivating possession of five biswas of land. It is true that they did not receive for many years their profits equal to the profits to which they were entitled according to their half-share, but that does not mean that they were prevented from participation in the rents and profits for any time. The learned Munsif, who, as I have already observed, has taken great pains in arriving at his decision, states atone portion of his judgment:

The purchase by defendant 1, the fixation of rent over the plot in question, the decree for arrears of rent, and then the ejectment and dakhal dehani, all combine and go to prove that the possession of defendant 1 was exclusive and adverse though he was a co-owner in a joint khewat.

5. Formerly the khewat land was cultivated as sir: 5 biswas by the plaintiffs' father Ram Lal, and 13 biswas by one Fateh Husain. Fateh Husain's share in the khewat to the extent of one-half was put up for auction and purchased by Nihal Singh.

6. This is the reference to the purchase by the defendant. The purchase was of half-share of the khewat, and does not indicate any adverse possession over the entire khewat. Fateh Husain became an ex-proprietary tenant, and the rent had to be fixed by the Collector under Section 36, Land Revenue Act. As Nihal Singh was the purchaser, he would be the person to move the Collector to fix the rent if the Collector, as usually happens, omitted to do so. The rent having been fixed at his instance he would be the person entitled to sue for arrears of rent, and the ejectment and dakhal dehani followed on the decree remaining unsatisfied. The learned Counsel for the respondents referred the Court to the provisions of Section 194, Tenancy Act, and asserted that all the cosharers jointly should have sued Fateh Husain for recovery of arrears of rent. I do not agree. Obviously by a mutual arrangement certain cosharers were cultivating 5 biswas and one cosharer 13 biswas, and when Nihal Singh purchased the right and interest of the cosharer who was cultivating thirteen biswas, he would be the person to sue Faten Husain and recover rent from Fateh Husain, the other cosharers being entitled only to settlement or profits. The learned Munsif has treated the 13 biswas as something separate from the khewat and argued that these 13 biswas were separately held by Nihal Singh adversely to the plaintiffs. As I have pointed out above, this is not the correct view to take of the situation. These thirteen biswas could not be considered as a thing quite apart but the whole khewat must be considered in determining whether one cosharer had ousted the other or not. By being in possession of five biswas of land the plaintiffs were in possession of the khewat, and there could have been no adverse possession by Nihal Singh of the plaintiff's share in the khewat. All the negligence that the plaintiffs have been guilty of is to omit to sue year by year for their share of the excess profits recovered by the cosharer who was in cultivating possession of 13 biswas. That would not give to the owner in cultivating possession of 13 biswas right to the excess profits by adverse title. A claim to profits arises every year, and there can be no adverse title where the question is of the realization of profits by a cosharer who is in possession of land less than his share in the khewat.

7. I set aside the decree of the lower appellate Court and decree the plaintiffs' suit that they are owners of one-half share in khewat No. 108 measuring 18 biswas in mauza Lowar Jan Ali.

8. The plaintiffs shall receive costs of all the Courts from defendant Babu Nihal Singh.